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 The plaintiff improperly entitled this filing “Petition for Writ of Mandate and Status 1

Update.” The text of this document, however, demonstrates that it is a request for an extension

of time and injunctive relief.

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

THOMAS TORCHIA,

Plaintiff, No. CIV S-04-0673 GEB CMK

vs.

CITY OF REDDING, et al., 

Defendants.

 / FINDINGS AND RECOMMENDATION

Plaintiff is a state prisoner proceeding pro se, who, on April 4, 2004, filed a complaint

on behalf of his deceased son alleging civil rights violations, wrongful death, and negligence. The

success, if any, of plaintiff’s anticipated prosecution of these claims was and is contingent upon his

appointment in state court as personal representative of his deceased son’s estate. On November 12,

2004, the court stayed this action to and including May 5, 2005, or until plaintiff was appointed

personal representative of the Estate of Tim Torchia, whichever event first occurred. On April 6,

2005, this court granted plaintiff’s request to extend the stay to and including July 5, 2005. 

On June 13, 2005, plaintiff requested the court grant him a second extension of time

to initiate the state probate action. Plaintiff alleges that he needs more time because San Quentin’s 1

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litigation officer and the entire Shasta County Court system are not cooperating with his litigation

efforts. Plaintiff, however, has not provided the court with any evidence of how these parties

prevented him from beginning the state probate action. Plaintiff offers only these blanket

allegations. The court is not persuaded by plaintiff’s allegations because plaintiff has not made any

real effort to proceed with his probate action in the past nine months. Plaintiff blames his lack of

progress on government officials. As a result, any additional extensions of time would be futile. 

Attendant to these issues is the plaintiff’s assumption that he would qualify as the

personal representative of his son’s estate. The court does not share this optimism. This court has

no information that would lead it to believe that the plaintiff could qualify as a personal

representative, or even if so, whether he would be the most suitable candidate in light of his

incarceration. The court is concerned whether he would be able to perform the many duties and

responsibilities of a personal representative since he has been unable for the better part of a year to

begin with the easiest task of the office, namely, completing the preprinted judicial council forms

and causing them to be filed in the appropriate state court. 

The plaintiff also requests a court order directing San Quentin’s litigation officer to

facilitate a telephonic hearing and the Shasta County Court system to cooperate with his litigation

efforts. The court construes such requests as requests for injunctive relief. 

The legal principles applicable to a request for injunctive relief are well established.

To prevail, the moving party must show either a likelihood of success on the merits and the

possibility of irreparable injury, or that serious questions are raised and the balance of hardships tips

sharply in the movant’s favor. See Coalition for Economic Equity v. Wilson, 122 F.3d 692, 700 (9th

Cir. 1997); Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374, 1376 (9th Cir. 1985).

The two formulations represent two points on a sliding scale with the focal point being the degree

of irreparable injury shown. See Oakland Tribune, 762 F.2d at 1376. “Under any formulation of

the test, plaintiff must demonstrate that there exists a significant threat of irreparable injury.” Id.

In the absence of a significant showing of possible irreparable harm, the court need not reach the

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issue of likelihood of success on the merits. Id. 

In the present case, the plaintiff has not made any such showing. Plaintiff alleges that

he received a note from the litigation officer stating that the litigation officer will facilitate a

telephonic probate hearing upon a request from the court. Plaintiff has not included this note with

any of his filings, and the court is skeptical as to what type of probate hearing would be involved

when the plaintiff has not even initiated a filing in the state court system. The court will not grant

injunctive relief on plaintiff’s conclusory allegations. Therefore, plaintiff’s request for injunctive

relief should be denied.

In accordance with the above, IT IS HEREBY RECOMMENDED that:

1. Plaintiff’s request for continuation of the “stay” be denied;

2. That the “stay” of proceedings entered by this court on November 12, 2004, be

 lifted;

3. Plaintiff’s request for injunctive relief be denied; and

4. Civ. Case No. S-04-0673 GEB CMK, be dismissed without prejudice.

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fifteen days

after being served with these findings and recommendations, any party may file written objections

with the court and serve a copy on all parties. Such a document should be captioned “Objections

to Magistrate Judge’s Findings and Recommendations.” 

///

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 Any reply to the objections shall be served and filed within ten days after service of the

objections. The parties are advised that failure to file objections within the specified time may waive

the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: September 1, 2005.

______________________________________

CRAIG M. KELLISON

UNITED STATES MAGISTRATE JUDGE

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